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18-396
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MATTHEW HERRICK,
Appellee,
v.
GRINDR, LLC,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK
BRIEF OF AMICI CURIAE ELECTRONIC PRIVACY
INFORMATION CENTER IN SUPPORT OF APPELLANT
AND URGING REVERSAL
Marc Rotenberg
Counsel of Record
Alan Butler
Natasha Babazadeh
Electronic Privacy
Information Center (EPIC)
1718 Connecticut Ave. NW,
Suite 200
Washington, DC 20009
(202) 483-1140
rotenberg@epic.org
May 31, 2018CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and 29(c) for Case No. 13-422 amicus
curiae Electronic Privacy Information Center (“EPIC”) states that it is a District of
Columbia corporation with no parent corporation or publicly-held company with a
10 percent or greater ownership interest. EPIC is a non-profit, non-partisan
corporation, organized under section 501(c)(3) of the Internal Revenue Code.
iTABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ....................................................... i
TABLE OF AUTHORITIES ................................................................................ iii
INTEREST OF AMICUS CURIAE ........................................................................1
SUMMARY OF THE ARGUMENT ......................................................................2
ARGUMENT..........................................................................................................3
I. Online harassment is a significant threat facing Americans today. ..... 5
II. Social media companies know that their platforms enable abuse,
and they assert authority to limit harassing behavior and to remove
offending users................................................................................... 8
III. The lower court’s decision is contrary to the “Good Samaritan”
provision in section 230. .................................................................. 14
A. Congress created the § 230 safe harbor to encourage
internet service providers to police their platforms. ................ 14
B. The lower court’s broad interpretation of § 230 immunity
would not advance the speech-promoting policy of the
statute. ................................................................................... 20
CONCLUSION.....................................................................................................23
CERTIFICATE OF COMPLIANCE.....................................................................24
CERTIFICATE OF SERVICE ..............................................................................25
iiTABLE OF AUTHORITIES
Cases
Almeida v. Amazon.com, Inc.,
456 F.3d 1316 (11th Cir. 2006) ......................................................................... 18
Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119 (9th Cir. 2003) ........................................................................... 18
Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.,
519 F.3d 666 (7th Cir. 2008) ............................................................................. 18
Cubby, Inc. v. CompuServe,
776 F. Supp. 135 (S.D.N.Y. Oct. 29, 1991)....................................................... 15
Doe v. MySpace, Inc.,
528 F.3d 415 (5th Cir. 2008) ............................................................................. 17
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,
521 F.3d 1157, 1164 (9th Cir. 2008) ............................................................18, 19
Jane Doe No. 1 v. Backpage.com, LLC,
817 F.3d 12 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017) ....................... 17
Jones v. Dirty World Entm’t Recordings LLC,
755 F.3d 398 (6th Cir. 2014) ............................................................................. 17
Klayman v. Zuckerberg,
753 F.3d 1354 (D.C. Cir. 2014) ........................................................................ 17
Stratton Oakmont, Inc. v. Prodigy Servs. Co.,
23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995) .................................................... 15
Universal Commc’n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413, 419 (1st Cir. 2007) ..................................................................... 17
Zeran v. America Online,
129 F.3d 327 (4th Cir. 1997) ............................................................................. 14
Statutes
Communications Decency Act of 1996, Pub. L. 104-104, Title V, 110 Stat. 133 ... 3
Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 ........................... 3
47 U.S.C. § 230...................................................................................................... 2
§ 230(a) .............................................................................................................. 3
§ 230(a)(1) ........................................................................................................ 14
§ 230(b) .............................................................................................................. 3
§ 230(b)(1) ........................................................................................................ 14
iii§ 230(b)(3) .......................................................................................................... 4
§ 230(b)(4) ........................................................................................................ 16
§ 230(b)(5) .....................................................................................................4, 14
§ 230(c)(1) .....................................................................................................3, 14
Other Authorities
141 Cong. Rec. 22,047 ......................................................................................... 16
Algorithms: How Companies’ Decisions About Data and Content Impact
Consumers: Hearing Before the Subcomm. on Digital Commerce & Consumer
Protection of the H. Comm. on Energy & Commerce, 115th Cong. 15 (2017)
(statement of Frank Pasquale, Professor of Law, University of Maryland)........ 20
Bumble, Terms & Conditions (2018) .......................................................... 9, 11, 13
Danielle Keats Citron & Benjamin Wittes, The Internet Will Not Break: Denying
Bad Samaritans § 230 Immunity, 86 Fordham L. Rev. 401 (2017) ........... 5, 19, 21
Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. Rev. 61 (2009) ................. 16
Danielle Keats Citron, Hate Crimes in Cyberspace (2014) .................................... 6
Darrin Giglio, The Psychological Effects of Cyber Bullying (2017) ....................... 7
Erin Bartnett, PEN America’s New Guide Recognizes Online Harassment as a
Threat to Free Speech, Electric Lit. (Apr. 20, 2018) ........................................... 7
Grindr, Blocking and Reporting Users (2018) ...................................................... 12
Grindr, Terms and Condition of Service (2018) .......................................... 9, 12, 13
H.R. Rep. No. 104-223 (1995) ............................................................................. 16
H.R. Rept. No. 104-458 (1996) (Conf. Rep.).......................................................... 3
Kate Klonick, The New Governors: The People, Rules, and Processes
Governing Online Speech, 131 Harv. L. Rev. 1598 (2018) ..........................17, 20
Maeve Duggan, Online Harassment 2017 (2017) ...........................................6, 7, 8
Mary Anne Franks, The Lawless Internet? Myths and Misconceptions About
CDA Section 230, Huffington Post (Feb. 17, 2014) ........................................... 17
Match.com, How to Date Safely (2018) ............................................................... 11
Match.com, Protecting Member Integrity on Match.com (2018) .......................... 11
Match.com, Terms of Use Agreement (2017) ....................................................9, 12
Monica Anderson, Key Takeaways on How Americans View—and Experience—
Online Harassment, Pew Research Ctr. (Jul. 11, 2017) ....................................... 6
OkCupid, Support Feedback (2018) ..................................................................... 10
OkCupid, Terms & Conditions (2018) ........................................................ 8, 10, 13
ivPEN America, Online Harassment Field Manual (2018) ....................................... 7
Ryan Calo & Alex Rosenblat, The Taking Economy: Uber, Information, and
Power, 117 Colum. L. Rev. 1623 (2017) .......................................................... 21
Tinder, Safety Tips (2018) .................................................................................... 10
Tinder, Terms of Use (2018) .................................................................................. 8
vINTEREST OF AMICUS CURIAE1
The Electronic Privacy Information Center (“EPIC”) is a public interest
research center in Washington, D.C., established in 1994 to focus public attention
on emerging civil liberties issues and to protect privacy, the First Amendment, and
other constitutional values.
EPIC routinely participates as amicus curiae in cases about consumer
privacy before the United States Supreme Court and federal circuit courts. See,
e.g., Smith v. Facebook, Inc., No. 17-16206 (9th Cir. filed Sept. 25, 2017) (arguing
that Facebook users do not consent to Facebook’s collection of medical data from
third-party websites); Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (arguing that
the violation of a consumer’s privacy rights under federal law constitutes an injury-
in-fact sufficient to confer Article III standing); In re Nickelodeon Consumer
Privacy Litig., 827 F.3d 262 (3rd Cir. 2016) (arguing that unique persistent
identifiers are “personally identifiable information” under the Video Privacy
Protection Act); Fraley v. Batman, 638 Fed. App’x 594 (9th Cir. 2016) (arguing
that Facebook’s “Sponsored Stories” settlement was not fair or sufficient for class
members); Joffe v. Google, Inc., 746 F.3d 920 (9th Cir. 2013) (arguing that
1
The parties consent to the filing of this brief. In accordance with Rule 29, the
undersigned states that no monetary contributions were made for the preparation or
submission of this brief, and this brief was not authored, in whole or in part, by
counsel for a party.
1interception of Wi-Fi communications from home networks violated the federal
Wiretap Act).
SUMMARY OF THE ARGUMENT2
Dating platform companies should be required to take down impersonating
profiles when they fail to respond to egregious and abusive conduct which they
knew about and which they facilitated. Grindr received many notifications about
the harmful activity targeted at the Plaintiff. Grindr had the ability and the
authority to terminate the fake profiles and to stop the abuse. Yet the commercial
service did nothing. Grindr argues that § 230 of the Communications Decency Act,
the “Good Samaritan” provision, provides the company absolute immunity from
suit. But Grindr is not a Good Samaritan, and Congress never intended § 230 to
protect this corporate irresponsibility.
Grindr is well aware of the abuse that can take place on its social platform. It
has explicitly reserved the right to limit such activity in its Terms of Service. But
Grindr also contends that it cannot be compelled to act when it fails to take action
against users who cause harm to other users and violate the company’s Terms of
Service. That is not what Congress intended with section 230.
2
EPIC would like to thank its Spring 2018 Clerk, Sara Wolovick, for her help in
preparing this amicus brief.
2ARGUMENT
When Congress passed the comprehensive Telecommunications Act of
1996, Pub. L. 104-104, 110 Stat. 56, it substantially overhauled the regulatory
structure governing the cable, telephone, and broadcast industries. Congress added
several provisions concerning the Internet, including “obscenity and violence”
online.3 Section 230 created “Good Samaritan” protections for certain online
service providers who restricted “access to objectionable material.” H.R. Rept. No.
104-458, at 194 (1996) (Conf. Rep.). Section 230 stated that “No provider or user
of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider.” 47 U.S.C. §
230(c)(1). A specific purpose of Section 230 was to overrule Stratton Oakmont,
Inc. v. Prodigy Servs. Co., 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995), and “any
other similar decisions which have treated such providers and users as publishers
or speakers of content that is not their own because they have restricted access to
objectionable material.” H.R. Rept. No. 104-458, at 194 (1996) (Conf. Rep.).
Congress also included significant findings and policy statements in Section 230
that help to elucidate its intended scope. See 47 U.S.C. §§ 230(a), (b).
3
The sections in Title V of the Telecommunications Act are referred to as the
“Communications Decency Act of 1996” (“CDA”). See 110 Stat. 133, codified at
47 U.S.C. § 609 note. Section 509 within the CDA amended Title II of the
Communications Act of 1934 to add the new § 230 to 47 U.S.C.
3Nothing in the text, findings, or history of § 230 indicates that Congress
intended to prevent courts from protecting users who suffer abuse and harassment
online. Congress made clear that it is the “policy of the United States” to
“encourage the development of technologies which maximize user control over
what information is received by individuals, families, and schools who use the
Internet and other interactive computer services,” Id. § 230(b)(3) (emphasis
added), and to “ensure vigorous enforcement of Federal criminal laws to deter and
punish trafficking in obscenity, stalking, and harassment by means of computer,”
Id. § 230(b)(5) (emphasis added).
The question is whether Section 230 allows internet platforms, such as
Grindr, to ignore rampant abuse, harassment, and impersonation directed toward
the users of its services. The § 230 immunity provision targets defamation claims
against a “publisher or speaker,” not abuse or harassment claims against a service
provider.4 Without an ability to force platforms to take down malicious fake
profiles, victims may be subjected to ongoing psychological, social, and financial
harm. In the physical world, potential liability and injunctive actions require
4
The Supreme Court has never addressed the scope of immunity under the statute,
but the Court has relied upon the findings and policy statements codified in §
230(b) when interpreting other provisions in the Communications Act. See Nat’l
Cable & Telecomm. Ass’n Inc. v. Gulf Power Co., 534 U.S. 327, 360 (2002)
(determining scope of Pole Attachment Act); Ashcroft v. ACLU, 535 U.S. 564, 566
(2002) (evaluating constitutionality of Child Online Protection Act).
4businesses and individuals to prevent abusive behavior. There is no justification for
treating online platforms differently. As Professor Danielle Citron has explained:
In physical space, a business that arranged private rooms for strangers
to meet, knowing that sexual predators were using its service to meet
kids, would have to do a great deal more than warn people to proceed
“at their own peril” to avoid liability when bad things happened. A
physical magazine devoted to publishing user-submitted malicious
gossip about nonpublic figures would face a blizzard of lawsuits as false
and privacy-invading materials harmed people’s lives. And a company
that knowingly allowed designated foreign terrorist groups to use their
physical services would face all sorts of lawsuits from victims of
terrorist attacks. Something is out of whack—and requires rethinking—
when such activities are categorically immunized from liability merely
because they happen online.
Danielle Keats Citron & Benjamin Wittes, The Internet Will Not Break: Denying
Bad Samaritans § 230 Immunity, 86 Fordham L. Rev. 401, 403 (2017).
I. Online harassment is a significant threat facing Americans today.
The Internet has changed substantially since Congress passed the
Telecommunications Act in 1996. Advanced social media platforms did not exist
when Congress enacted the law. Today companies aggregate detailed profiles and
make them available to people around the world. As Professor Citron has
explained:
The Internet extends the life of destructive posts. Harassing letters are
eventually thrown away, and memories fade in time. The web,
however, can make it impossible to forget about malicious posts.
Search engines index content on the web and produce it
instantaneously. Indexed posts have no built-in expiration date; neither
5does the suffering they case. Search engines produce results with links
to destructive posts created years earlier.
Danielle Keats Citron, Hate Crimes in Cyberspace 4 (2014).
As of 2017, 41 percent of Americans have experienced online harassment
and 62 percent consider it a critical concern. Monica Anderson, Key Takeaways on
How Americans View—and Experience—Online Harassment, Pew Research Ctr.
(Jul. 11, 2017).5 Life online is often characterized by harassment in its varying
forms, from “creat[ing] a layer of negativity that people must sift through” to
“compromise[ing] users’ privacy, forc[ing] them to choose when and where to
participate online, or even pos[ing] a threat to their physical safety.” Maeve
Duggan, Online Harassment 2017, at 3 (2017).6 Of the many forms of harassment,
nearly one-in-five Americans have been subjected to severe harassment, which
may include physical threats, harassment over an extended period, sexual
harassment or stalking. Id. And about 80 percent of Americans believe that online
service providers have a responsibility to intervene when harassment occurs. Id. at
4.
Online harassment can lead to psychological harm. Almost a third of
Americans who have experienced harassment online subsequently experience
5
http://www.pewresearch.org/fact-tank/2017/07/11/key-takeaways-online-
harassment/.
6
http://www.pewinternet.org/2017/07/11/online-harassment-2017/.
6some form of mental or emotional distress as a result of the harassment. Id. at 20.
One-fifth of Americans who have experienced online harassment have reported
problems arising as a result of the harassment. Id. These problems include harm to
relationships with friends and family, damage to reputation, harm to romantic
relationships, problems with work and school, financial loss, and trouble finding
work and housing. Id.; see also Darrin Giglio, The Psychological Effects of Cyber
Bullying (2017).7 Online harassment can also inhibit speech. See PEN America,
Online Harassment Field Manual (2018);8 see also Erin Bartnett, PEN America’s
New Guide Recognizes Online Harassment as a Threat to Free Speech, Electric
Lit. (Apr. 20, 2018).9 Online users who witness harassment “may feel anxious or
unsafe about their own interactions or participation online, and many are
concerned that widespread harassment contributes to an environment in which
people are scared or unwilling to speak freely for fear of retribution.” Duggan,
supra, at 35. More than a quarter of Americans have decided against posting
something online after witnessing online harassment of third parties. Id. at 36.
Almost half of American adults have taken measures in response to witnessing
7
https://pvteyes.com/the-psychological-effects-of-cyber-bullying/.
8
https://onlineharassmentfieldmanual.pen.org/.
9
https://electricliterature.com/pen-america-s-new-guide-recognizes-online-
harassment-as-a-threat-to-free-speech-8dbad8a19ea8.
7online harassment, including refraining from posting, changing online information
provided, or completely stopping use of the platform altogether. Id.
Under the lower court’s interpretation of § 230, online platforms bear no
responsibility for the harassment and abuse that their systems enable. If they chose
not to respond to the exposure of personal information or intimate images, to
threats of violence, to verbal and psychological abuse, there is nothing a victim can
do to intervene. But Congress never intended § 230 to create such a system.
II. Social media companies know that their platforms enable abuse, and
they assert authority to limit harassing behavior and to remove
offending users.
Most, if not all, social media platforms recognize that their systems can
facilitate harassment and abuse, and they prohibit such behavior and retain the
right to block it. Platforms prohibit behavior such as impersonating individuals,
stalking, harassing, abusing, defaming, threatening, and violating the privacy of
other users, and disclosing the location or personal information of users without
consent. These platforms explicitly retain the right to control such abusive
behavior and prohibit the misuse of their systems. See, e.g., OkCupid, Terms &
Conditions (2018) (users must agree that they “shall not under any circumstances
harass or make mischief against any other user of the Website.”);10 Tinder, Terms
of Use (2018) (users must agree not to “bully, ‘stalk,’ intimidate, assault, harass,
10
https://www.okcupid.com/legal/terms.
8mistreat or defame any person,” or “impersonate any person or entity or post any
images of another person without his or her permission”);11 Match.com, Terms of
Use Agreement (2017) (users “may not post…any offensive, inaccurate, abusive,
obscene, profane, sexually oriented, threatening, intimidating, harassing, rude,
vulgar, derogatory, sexist, defamatory, insulting, racially offensive, or illegal
material, or any material that infringes or violates another person’s rights”);12
Bumble, Terms & Conditions (2018) (“impose[s] restrictions on certain content
which contains language or imagery which could be deemed offensive or is likely
to harass” or “is abusive, insulting or threatening” or “shows another person which
was created or distributed without that person’s consent.”).13
Grindr similarly prohibits users from impersonating individuals and from
using its services to stalk, harass, abuse, defame, threaten, violate the privacy of
other users, or disclose the location or personal information of other users without
consent. Grindr, Terms and Condition of Service (2018).14 In an instance where a
user violates Grindr’s terms of service, Grindr informs users it may ban accounts
or request users to delete content. Id. But even though the platform has granted
itself broad power to control and moderate its platform, Grindr has refused to
11
https://www.gotinder.com/terms/us-2018-05-09.
12
https://www.match.com/registration/membagr.aspx.
13
https://bumble.com/terms.
14
https://www.grindr.com/app/terms-of-service/?lang=en.
9enforce its own policies. This goes against industry standards, and it is not the
“Good Samaritan” behavior that Congress sought to incentivize in § 230, quite the
opposite.
Grindr appears to stand alone in its refusal to police abuse. Tinder, OkCupid,
Match.com, and Bumble all encourage its users to proactively report abusive
behavior and fraudulent profiles. For example, OkCupid provides:
If you believe that any user of this Website is harassing you or is
otherwise using personal information about you for unlawful purposes,
we encourage you to first inform local law enforcement authorities and
then contact us via The Feedback Form so that we may take appropriate
action to block further use of the Website by any user who is using this
Website and information obtained from it for improper purposes.
OkCupid, Terms & Conditions. The company also provides a link to a ‘feedback
form’ and directs users to the appropriate location to file a report. See OkCupid,
Support Feedback (2018).15 Tinder similarly requests that users report anyone
engaging in offensive behavior. On its Safety Tips page, Tinder states to “please
report anyone who violates our terms of use,” which includes “[u]sers sending
harassing or offensive messages,” “[u]sers behaving inappropriately after meeting
in person,” and “[f]raudulent registration or profiles.” Tinder, Safety Tips (2018).16
Match.com similarly provides a link for users to “report anyone who violates
15
https://www.okcupid.com/feedback.
16
https://www.gotinder.com/safety.
10[its] terms of use.” Match.com, How to Date Safely (2018).17 The link directs users
to a page that specifically addresses profile integrity, stating that Match.com
“strive[s] to present only profiles of real people” and “[a]ll profiles submitted to
Match.com go through an approval process,” but also encourages users “to
improve the overall Match.com experience” by reporting offensive behavior.
Match.com, Protecting Member Integrity on Match.com (2018).18 The platform has
a specific team tasked with ensuring the “integrity” of user profiles:
If you receive an inappropriate email or see a profile that seems
suspicious in any way, please notify us. You can do this from any
profile page or from any email received. This information goes directly
to and is reviewed by our Member Integrity Team. If you want to report
someone and need to locate the member again, search by the user name,
then report your concern from the member’s profile.
Id. Match.com also promises that any “fraudulent profile” will “be blocked from
the site.” Id. Bumble informs users to “report any abuse or complain about
Member Content by contacting [them], outlining the abuse and/or complaint.”
Bumble, Terms & Conditions (2018). Also, Bumble provides an alternative method
by enabling users to “report a user directly from a profile or in chat by clicking the
‘Block & Report’ link.” Id.
Instead of following these industry standards to protect users from abuse,
Grindr appears to do nothing. The platform does not encourage users to report
17
https://www.match.com/help.safetytips.aspx.
18
https://www.match.com/blocking/pu_abuseinfo.aspx?hdr=pop&lid=80.
11offensive behavior. Grindr provides no link or mechanism for users to file
complaints or to flag abusive behavior. Grindr does allow a user to block and
report another user, but only provides a drop-down menu with select few concerns
to choose from. Grindr, Blocking and Reporting Users (2018).19 In a survey on
Grindr’s website, less than half of Grindr users found Grindr’s webpage on
blocking and reporting users actually helpful. Id.
Yet even as it ignores user complaints about abuse and fails to provide
reasonable protection mechanisms, Grindr retains ultimate control over its
platform. It could clearly take down an offending profile or block a user if it chose
to do so. The Grindr agreement specifically states that the company may “delete
[users’] submissions” and “ban [users’] account[s] . . . at any time for any reason,
or no reason whatsoever.” Grindr, Terms and Conditions of Service. Also, “any
violations of the Guidelines or th[e] Agreement” can lead to user accounts “being
banned” or access being terminated. Id.
Other platforms provide for meaningful control over user profiles.
Match.com asserts that it may “terminate or suspend [user] subscription[s] and/or
membership in the Service at any time” with a violation of the User Agreement.
Match.com, Terms of Use Agreement. Tinder also alleges that it “reserves the right
19
https://help.grindr.com/hc/en-us/articles/217763127-Blocking-and-Reporting-
Users.
12to review and remove Content that violates” its User Agreement. Tinder, Terms of
Use (2018). OkCupid asserts that it “reserves the right, at its sole discretion, to
deny further or continuing access to the Website to any visitor, including, without
limitation, any user that OkCupid determines has violated any aspect of the[]
Terms of Use.” OkCupid, Terms & Conditions. It also reserves the right “to seek
and obtain any other remedies available to it pursuant to any applicable laws and
regulations or at equity as a result” of any violations. Id. And last, Bumble
“reserve[s] the right . . . to terminate or suspend any Account, or make use of any
operational, technological, legal or other means available to enforce the Terms
(including without limitation blocking specific IP addresses), at any time without
liability and without the need to give you prior notice.” Bumble, Terms &
Conditions. But unlike Grindr, these other platforms actually provide mechanisms
for their users to flag abuse and to trigger action that would protect the users.
This power structure underscores the need for accountability when a
platform refuses to respond to repeated notifications of abuse. There is no question
that Grindr could easily prevent the abusive and harassing conduct by blocking the
fake profiles and removing the Plaintiff’s name and personal information. Grindr
also asserts that it can suspend or block an account “at any time.” Grindr, Terms
and Conditions of Service. Yet when a user alerts the company about a fake profile
actively being used to harm and harass them, the company chooses to do nothing
13and argues that it cannot be held to account for that decision. Such an interpretation
of § 230 would do nothing to “ensure vigorous enforcement of Federal criminal
laws to deter and punish trafficking in obscenity, stalking, and harassment by
means of computer.” 47 U.S.C. § 230(b)(5). The stated goal of the law is being
undermined by the very company that argues that immunity should be granted in
its favor. That cannot be what Congress intended.
III. The lower court’s decision is contrary to the “Good Samaritan”
provision in section 230.
This Court should not hold that a company is shielded under § 230 from all
liability for abuse and harassment carried out on its platform. Such a broad liability
protection would remove a key incentive for conducting oversight of user
misconduct and would undercut the core purpose of § 230. Congress enacted the
law to protect blocking and screening of offensive material by “Good Samaritans,”
and to promote the Internet as a source “of educational and informational
resources,” not to give platforms carte blanche to ignore harassment and abuse. See
47 U.S.C. §§ 230(a)(1), (b)(1), (c)(1).
A. Congress created the § 230 safe harbor to encourage internet
service providers to police their platforms.
Congress intended § 230 “to encourage service providers to self-regulate the
dissemination of offensive material over their services.” Zeran v. America Online,
129 F.3d 327, 331 (4th Cir. 1997). The concern that gave rise to the amendment
14was created by conflicting outcomes in two cases: one by the Southern District of
New York in Cubby, Inc. v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991) and
another by the New York trial court in Stratton Oakmont, Inc. v. Prodigy Servs.
Co., 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995). In CompuServe, plaintiffs sued
an “on-line general information service” for defamatory comments made by a
columnist on its platform. 776 F. Supp. at 137. The court held that CompuServe
was not liable because it had acted as a mere “distributor,” having neither reviewed
any of the column before it was posted nor had knowledge of its contents. Id. at
141. The CompuServe decision preserved the traditional distributor-publisher
distinction that had applied to print media, but that distinction became more
complicated as online platforms increasingly moderated their forums.
In Stratton Oakmont, plaintiffs sued an interactive computer service for
defamatory comments made by a third party on a bulletin board. 23 Media L. Rep.
1794. Unlike the court in CompuServe, the court in Stratton Oakmont found that
the service exercised editorial control and could therefore be liable for defamation.
Id. Congress feared that the outcome in Stratton Oakmont would deter service
providers from taking any steps to censor offensive material posted online.
Congress therefore enacted § 230 “to remove disincentives for the development
and utilization of blocking and filtering technologies that empower parents to
restrict their children’s access to objectionable or inappropriate online material.”
1547 U.S.C. § 230(b)(4). Representatives Christopher Cox and Ron Wyden first
introduced § 230 as an amendment to the Telecommunications Act, expressly to
protect “Good Samaritan” service providers who screened offensive material. H.R.
Rep. No. 104-223, at 3, 14 (1995). Members of the House Judiciary Committee,
including Representative Bob Goodlatte, echoed this view of the provision when it
was introduced:
Currently, however, there is a tremendous disincentive for online
service providers to create family friendly services by detecting and
removing objectionable content. These providers face the risk of
increased liability where they take reasonable steps to police their
systems. A New York judge recently sent the online services the
message to stop policing by ruling that Prodigy was subject to a $200
million libel suit simply because it did exercise some control over
profanity and indecent material.
141 Cong. Rec. 22,047. The House Rules Committee had previously described the
purpose of the amendment as “protecting from liability those providers and users
seeking to clean up the Internet.” H.R. Rep. No. 104-223, at 3.
Nothing in the text, structure, or history of § 230 indicates that it should
provide blanket immunity to service providers that do nothing to respond to
repeated complaints about abuse and harassment on their platforms, and thereby
negligently cause harm to innocent individuals. Protecting providers who fail to
engage in any form of self-regulation is “antithetical” to the intent of the statute.
Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. Rev. 61, 116 n. 377 (2009).
16Commentators have noted that the core purpose of the law was to protect users, not
to put them at risk:
Development of technologies that “maximize user control over what
information is received” by Internet users, as well as the “vigorous
enforcement of Federal criminal laws to deter and punish trafficking in
obscenity, talking and harassment by means of computer.” In other
words, the law [wa]s intended to promote and protect the values of
privacy, security and liberty alongside the values of open discourse.
Mary Anne Franks, The Lawless Internet? Myths and Misconceptions About CDA
Section 230, Huffington Post (Feb. 17, 2014);20 see also Kate Klonick, The New
Governors: The People, Rules, and Processes Governing Online Speech, 131
Harv. L. Rev. 1598, 1605–09 (2018).
The Supreme Court has yet to weigh in on the scope and meaning of § 230,
but state and lower federal courts have reached a “near-universal agreement” that
the provision should “not be construed grudgingly.” Jane Doe No. 1 v.
Backpage.com, LLC, 817 F.3d 12, 18 (1st Cir. 2016), cert. denied, 137 S. Ct. 622
(2017); see also, e.g., Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398,
406 (6th Cir. 2014); Klayman v. Zuckerberg, 753 F.3d 1354,1358 (D.C. Cir. 2014);
Doe v. MySpace, Inc., 528 F.3d 415, 418 (5th Cir. 2008); Universal Commc’n Sys.,
Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); Almeida v. Amazon.com,
20
http://www.huffingtonpost.com/mary-anne-franks/section-230-the-lawless-
internet_b_4455090.html.
17Inc., 456 F.3d 1316, 1321–22 (11th Cir. 2006); Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119, 1123 (9th Cir. 2003).
However, courts have also typically granted § 230 immunity to providers
that actually engage in reasonable content moderation. The Seventh Circuit
emphasized that it would be unreasonable to extend the immunity to providers that
refuse reasonable requests to take down harmful content:
As precautions are costly, not only in direct outlay but also in lost
revenue from the filtered customers, ISPs may be expected to take the
do-nothing option and enjoy immunity under § 230(c)(1). Yet §
230(c)—which is, recall, part of the “communications Decency Act”—
bears the title “Protection for ‘Good Samaritan’ blocking and screening
of offensive material”, hardly an apt description if its principal effect is
to induce ISPs to do nothing about the distribution of indecent and
offensive materials via their services. Why should a law designed to
eliminate ISPs liability to the creators of offensive material end up
defeating claims by the victims of tortious or criminal conduct?
Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.,
519 F.3d 666, 670 (7th Cir. 2008). The immunity provision was purposefully
enacted to incentivize proactive moderation by removing the threat of liability, not
to shield those who refuse to engage in any form of regulation of platform policies.
The Ninth Circuit has similarly emphasized the gravity and dire implications
of a broad interpretation of § 230. The court has found that the law was “not
meant to create a lawless no-man’s-land on the Internet.” Fair Housing Council of
San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164 (9th Cir.
2008). The Ninth Circuit emphasized:
18The Internet is no longer a fragile new means of communication that
could easily be smothered in the cradle by overzealous enforcement of
laws and regulations applicable to brick-and-mortar businesses. Rather,
it has become a dominant-perhaps the preeminent-means through
which commerce is conducted. And its vast reach into the lives of
millions is exactly why we must be careful not to exceed the scope of
the immunity provided by Congress and thus give online businesses an
unfair advantage over their real-world counterparts, which must
comply with laws of general applicability.
Id. at n.15. In other words, a broad interpretation of § 230 immunity contradicts the
policy objectives laid out in the statute. It neither “promote[s]” the internet as a
platform for “educational and informational resources” nor encourages the “Good
Samaritan” behavior of platforms that Congress sought to protect.
Much has changed with the Internet since § 230 was enacted. Technology
companies have only grown “larger, more powerful, and less vulnerable than were
the nascent online service providers of two decades ago.” Citron & Wittes, supra,
at 411. The internet “has outgrown its swaddling clothes and no longer needs to be
so gently coddled.” Roommates.com, 521 F.3d at 1175 n.39. Congress would not
have imagined that the immunity it created for small bulletin board services who
engaged in reasonable content moderation would shield enormous corporations
from responsibility for the damage their platforms enable. See also Algorithms:
How Companies’ Decisions About Data and Content Impact Consumers: Hearing
Before the Subcomm. on Digital Commerce & Consumer Protection of the H.
Comm. on Energy & Commerce, 115th Cong. 15 (2017) (statement of Frank
19Pasquale, Professor of Law, University of Maryland) (discussing the danger and
“collateral consequences” of expanding § 230 immunity). Because the statutory
text does not strictly define what it means to “be treated as the publisher or
speaker” of information, this Court should construe the provision narrowly and
consistent with its purpose. This Court should not grant to Bad Samaritans the
protections that Congress intended to provide to Good Samaritans.
B. The lower court’s broad interpretation of § 230 immunity would
not advance the speech-promoting policy of the statute.
The lower court’s broad interpretation of § 230 immunity would neither
“promote the continued development of the internet” nor “preserve the vibrant and
competitive free market” for educational and informational resources that the
internet can enable. Such broad immunity would likely inhibit free speech. See
Klonick, supra, at 1607-08 (noting that the Fourth Circuit in Zeran interpreted the
dual congressional purposes of § 230 as (1) overturning Stratton Oakmont by
providing protections for Good Samaritans, and (2) as a free speech protection for
users meant “to encourage the unfettered and unregulated development of free
speech on the Internet, and to promote the development of e-commerce.”).
Section 230 was enacted to protect providers of bulletin board systems that
enabled users to post and express their opinions while still engaging in reasonable
content moderation. However, many modern platforms do not substantially
promote free expression of internet users. Take, for example, Uber and Airbnb, a
20transportation service and a real-estate rental service, respectively. These platforms
have little to no impact on free speech because their business model aims to
promote transportation and accommodations, as opposed to providing spaces to
encourage speech. See Ryan Calo & Alex Rosenblat, The Taking Economy: Uber,
Information, and Power, 117 Colum. L. Rev. 1623 (2017). Despite their clear
commercial purpose, businesses have attempted to claim § 230 immunity for such
services. See, e.g., Inman v. Technicolor USA, Inc., No. 11-666, 2011 WL
5829024, at *7 (W.D. Pa. Nov. 18, 2011) (holding that § 230 immunizes eBay
from liability for one user’s purchase of vacuum tubes from a third party that later
caused mercury poisoning).
Focusing only on the interests of the platforms “gives an irrational degree of
free speech benefit to harassers and scofflaws but ignores important free speech
costs to victims.” Citron & Wittes, supra, at 420. Also, “[a]n environment of
perfect impunity for intermediaries that facilitate online abuse is not an obvious
win for free speech if the result is that the harassers speak unhindered and the
harassed retreat in fear offline.” Id. Grindr’s failure to regulate offensive material
inhibits a victim’s ability to engage on its platform and enables harassers to
maximize offensive content. Because of the abuse he suffered, the Plaintiff no
longer uses the platform. Am. Compl. ¶ 48, JA-65. During this period, Grindr
selected and directed over a thousand strangers wanting sex—sometimes violently
21insisting on it—to Herrick’s home and workplace when it should have instead
prevented or, at least, mitigated the impact and harm, especially after it had been
repeatedly notified. Am. Compl. ¶ 49, JA-65.
Interpreting § 230 as providing blanket immunity to online service providers
that ignore their Good Samaritan obligations grants such providers a license to
disregard illegal activity, or even reward that activity directly or indirectly. And the
resulting harassment and abuse creates a chilling effect for victims and other users,
limiting free speech and discouraging user control. Users may reasonably fear that
continued engagement on these platforms will cause harm, and they will be forced
to disengage. This is simply not what Congress intended when it enacted § 230.
22CONCLUSION
Amici curiae EPIC et al. respectfully request this Court rule for the Appellants
and reverse the lower court decision.
Respectfully submitted,
/S/ MARC ROTENBERG _
Marc Rotenberg
Counsel of Record
Alan Butler
Natasha Babazadeh
Electronic Privacy
Information Center (EPIC)
1718 Connecticut Ave. NW,
Suite 200
Washington, DC 20009
(202) 483-1140
amicus@epic.org
May 31, 2018
23CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of 7,000 words of Fed.
R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(B). This brief contains 5,117 words,
excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type
style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared
in a proportionally spaced typeface using Microsoft Office Word Mac in 14 point
Times New Roman style.
Dated: May 31, 2018
/S/ MARC ROTENBERG _
24CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of May 2018, the foregoing Brief of
Amicus Curiae was electronically filed with the Clerk of the Court, and thereby
served upon counsel for the parties via electronic mail.
Dated: May 31, 2018
/S/ MARC ROTENBERG _
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